Woolworths Ltd v Director of Liquor Licensing
[2012] WASC 384
•15 OCTOBER 2012
WOOLWORTHS LIMITED -v- DIRECTOR OF LIQUOR LICENSING [2012] WASC 384
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 384 | |
| Case No: | GDA:15/2011 | 20 APRIL 2012 | |
| Coram: | EM HEENAN J | 15/10/12 | |
| 36 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | WOOLWORTHS LIMITED DIRECTOR OF LIQUOR LICENSING |
Catchwords: | Appeal Liquor licensing Refusal by Liquor Commission of application for liquor store licence Alleged error of law Jurisdictional error Need for findings of primary fact Wednesbury unreasonableness |
Legislation: | Liquor Control Act 1988 |
Case References: | Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Executive Director of Health v Lily Creek International Pty Ltd [2000] WASCA 258; (2000) 22 WAR 510 FAI Insurance Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; (2010) 31 VR 1 Hay Properties Pty Ltd v Roshel Pty Ltd (1998) (Unreported, WASC, Library No 9804496, 20 July 1998) Hermal Pty Ltd v Director of Liquor Licensing [2001] WASCA 356 Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21 Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 Jericho Nominees Pty Ltd v Dileum Pty Ltd (1992) 6 WAR 380 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 McKinnon v Secretary, Department of Treasury (2005) 220 ALR 587 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Citizenship v Shea [2011] FCA 37 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 Palace Securities v Liquor Licensing (1992) 7 WAR 241 R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511 Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422 S v State Administrative Tribunal of WA [No 2] [2012] WASC 306 Sharp v Wakefield [1891] AC 173 Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126 Swinburne v David Syme & Co [1909] VLR 550 Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
DIRECTOR OF LIQUOR LICENSING
Respondent
ON APPEAL FROM:
Jurisdiction : THE LIQUOR COMMISSION OF WESTERN AUSTRALIA
Coram : MR J FREEMANTLE (CHAIRPERSON)
- MR E WATLING (MEMBER)
MS H COGAN (MEMBER)
File No : LC 34 of 2011
Catchwords:
Appeal - Liquor licensing - Refusal by Liquor Commission of application for liquor store licence - Alleged error of law - Jurisdictional error - Need for findings of primary fact - Wednesbury unreasonableness
(Page 2)
Legislation:
Liquor Control Act 1988
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr C L Zelestis QC & Mr M N Solomon
Respondent : Ms F B Seaward & Ms M J Woo
Solicitors:
Appellant : G D Crocket & Co
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Executive Director of Health v Lily Creek International Pty Ltd [2000] WASCA 258; (2000) 22 WAR 510
FAI Insurance Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342
Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; (2010) 31 VR 1
Hay Properties Pty Ltd v Roshel Pty Ltd (1998) (Unreported, WASC, Library No 9804496, 20 July 1998)
Hermal Pty Ltd v Director of Liquor Licensing [2001] WASCA 356
Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
(Page 3)
Jericho Nominees Pty Ltd v Dileum Pty Ltd (1992) 6 WAR 380
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
McKinnon v Secretary, Department of Treasury (2005) 220 ALR 587
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v Shea [2011] FCA 37
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611
O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210
Palace Securities v Liquor Licensing (1992) 7 WAR 241
R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177
R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322
Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511
Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422
S v State Administrative Tribunal of WA [No 2] [2012] WASC 306
Sharp v Wakefield [1891] AC 173
Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126
Swinburne v David Syme & Co [1909] VLR 550
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492
(Page 4)
1 EM HEENAN J: By its decision of 30 August 2011 the Liquor Commission of Western Australia (the Commission) refused an application by the appellant, Woolworths Ltd, for a conditional grant of a liquor store licence, pursuant to s 47 and s 62 of the Liquor Control Act 1988 (WA) (the Act), in respect of premises proposed to be known as Dan Murphy's Bicton, located at 378 Canning Highway, Bicton. From that refusal the appellant appeals to this Court pursuant to s 28(2) and (4) of the Act which provides for an appeal against a decision of the Commission constituted by three members to be made to a single Judge but solely on a question of law. This confines any appellate intervention by this Court to cases where it has been demonstrated that an error of law has occurred: Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21 [35].
2 The powers of this Court on such an appeal are conferred by s 28(5) of the Act which allows this Court to affirm, vary or quash the decision appealed against, or to make any decision that the Commission could have made instead of the decision appealed against or to send the decision back to the Commission for reconsideration in accordance with any directions or recommendations that this Court considers appropriate and, in any case, to make any ancillary or incidental order which this Court considers appropriate. The appellant submits that if its appeal is successful the application should be sent back to the Commission for further consideration and decision according to law.
Background
3 The application had a lengthy history in the Liquor Commission. It was originally lodged with the Director of Liquor Licensing on 27 July 2009 and then advertised in accordance with instructions issued by the Director. Objections to the grant of the application were lodged by 20 separate interests, one of which was later withdrawn. The Executive Director of Public Health lodged a notice of intervention pursuant to s 69(8a)(b) of the Act and the City of Melville lodged a letter opposing the application. Pursuant to s 24 of the Act the Director of Liquor Licensing referred the application to the Commission for determination on 1 February 2011 and the Director subsequently lodged a notice of intervention under s 69(11) of the Act. A hearing before the three-member Commission was conducted on 22 June 2011 and towards the end of that hearing the various objections, including the objection of the City of Melville, were struck out.
(Page 5)
4 The main areas of controversy which were identified in the course of the application and addressed by the Commission emerge from the written reasons of the Commission given for its decision. Parts of these reasons describing these areas are as follows:
Submissions on behalf of applicant
6. The applicant seeks to open a Dan Murphy's liquor store adjacent to the Melville Plaza Shopping Centre in Bicton. The Melville Plaza Shopping Centre is the food and grocery hub of the Melville district centre, and comprises a Coles supermarket, as the anchor tenant, and 23 retail shops/financial institutions. The shopping centre attracts approximately 1.7 million people per annum.
7. The proposed liquor store will be located in an existing stand alone vacant building on the western side of the shopping centre. Following refurbishment, the building will provide approximately 1,843 m2 of floor space consisting of 1,296 m2 of display/sales area and 547 m2 of storage, amenities and office space.
8. It was submitted that Dan Murphy's is an established, reputable liquor store brand which successfully operates in other parts of Australia, but is relatively new to the WA market. The proposed liquor store will provide a matrix of services which will be hallmarked by:
• large, stylish facilities designed to provide a pleasant and unique shopping experience;
• the best range of liquor (over 4,000 product lines) including local, Australian and international products;
• the best possible prices;
• a dedicated fine wine area;
• knowledgeable, well-trained staff;
• a commitment to providing 'the best range of premium wines of any Australian retailer'; and
• superior customer service facilities such as twice weekly wine tastings, special events, gift cards, event planner services and trolleys for customers
9. According to the applicant, almost 26,000 people live in the locality, which consists predominantly of Australian born adults with higher than average incomes. Although some alcohol-related harm and ill-health occurs in the region which contains the locality, the level of harm or ill-health is no greater than or inconsistent
- with, that which occurs in the Perth metropolitan area as a whole. In addition, the applicant commissioned specific research to determine whether the operation of Dan Murphy's liquor stores in other areas had negatively impacted on existing levels of harm or ill-health. The three areas selected for review where Dan Murphy's liquor stores operate were Balga, Albany and Mandurah. According to the applicant's research there was no measurable increase in harm or ill-health in these areas following the grant of liquor store licences for Dan Murphy's stores. The applicant was therefore of the view that the grant of this application would be unlikely to negatively impact on any alcohol-related harm or ill-health that occurs in Bicton. Furthermore, the applicant submitted evidence from Dr John Henstridge, an experienced statistician, who is the Managing Director of Data Analysis Australia. Dr Henstridge's evidence related to the possible negative impact that the grant of the application may have from a harm perspective, and in particular whether an increased density of liquor outlets increases measured harm. After reviewing various studies relating to outlet density, Dr Henstridge concluded that while there have been a number of studies that have attempted to objectively understand the relationship between liquor outlets and harm, this is an inherently difficult research question and few studies have addressed it in a convincing manner because:
• many of these limitations are associated with problems of the data itself that is far from ideal;
• many of the analyses are flawed in that they do not distinguish between outlet types; and
• to his knowledge, none of the studies have attempted to consider management practices.
- 10. The applicant submitted that the grant of the application will have a number of positive benefits, including:
• the premises will introduce a packaged liquor amenity of a modern liquor store, co-located with a major supermarket and complimentary services within the Melville district centre and conveniently located off Canning Highway, being a major arterial road;
• the premises will provide convenience to the 1.8 million visitors to the Centre per annum;
• an existing rundown building will be redeveloped which will add to the amenity and safety of the area and no changes to the existing traffic or parking arrangements are required; and
- • as a branded Dan Murphy's store, the premises will appeal to older, more affluent and discerning customers
5 The Commission in its reasons went on to identify further submissions as to the likely advantages, benefits and amenities which the appellant submitted would flow from the grant of a licence for such a Dan Murphy's liquor outlet in this area. The Commission also drew attention to a public interest assessment report submitted by the appellant to fulfil its obligations under s 38 of the Act and to a town planning report, an environmental and health assessment report and a traffic impact assessment.
6 At the hearing the Director of Liquor Licensing, in the course of his intervention, raised the question of whether the grant of the application would be in the public interest, particularly in the context of whether the application would cater for the requirements of consumers for liquor when regard is given to the proper development of the liquor industry on the basis that:
• the proposed premises would be considerably larger than any other premises in, and immediately beyond, the locality having a proposed sales area of approximately 1,400 m2 compared to the average sales area of other premises of 200 m2; and
• the proposed premises are within 500 m of a similar packaged liquor outlet, Leopold Hotel First Choice Liquor, which has an approximate floor space of 895 m2.
7 The Director submitted that catering for the requirements of consumers for liquor services having regard for the proper development of the industry is one of the three primary objects set out in s 5(1) of the Act. Therefore, an applicant must not only demonstrate that grant of the application will cater for the requirements of consumers, but it must address the requirements of consumers in the context of the proper development of the liquor industry. This led the Commission to consider the meaning and scope of the phrase 'the proper development of the liquor industry' which is a subject to which it will be necessary to return.
8 The submissions by the intervener, the Executive Director of Public Health, were in relation to the harm or ill-health caused to people or any group of people due to the use of liquor and the need for the minimisation of that harm or ill-health. These submissions were supported by reference to various research material and by the submission that an increase in the
(Page 8)
- availability of alcohol leads to an increase in alcohol consumption which in turn is linked to increased violence, drink driving and property damage.
9 The Commission went on to examine these considerations and the evidence bearing on them in detail before coming to the crux of its decision which is found as follows [58] - [59]:
58. The Act places a clear onus on an applicant to adduce sufficient evidence to satisfy the licensing authority that the grant of the application is in the public interest. The level and degree of evidence to be submitted by an applicant will invariably vary depending upon the facts and circumstances of each case. Whether evidence is relevant and probative depends not on the intrinsic qualities of the evidence but on what the evidence is said to prove. Based upon the facts in this application, the Commission is not satisfied that adequate or compelling evidence has been submitted to demonstrate that the grant of this licence will cater for the requirements of consumers for liquor and related services in the manner and under the circumstances contemplated by the applicant at the proposed location.
59. Notwithstanding that the Commission is satisfied that the grant of the application will not negatively impact on the local community, the Commission finds, however, that the applicant has failed to discharge its onus under s 38(2) of the Act and the application is therefore refused.
10 These conclusions followed from earlier findings which the Commission reached as to the significance and the impact of evidence which it had received.
11 In the course of this appeal the appellant submitted that the following passages of the Commission's reasons reveal errors of law or jurisdictional errors which would support the intervention of this Court on this appeal. The reasons why it was submitted that these passages amount to errors of law or jurisdictional errors will need to be examined later but the passages are:
53. The Commission is of the view that the evidence submitted in this case does not satisfy the Commission that the grant of the application for a new liquor store licence at this location will cater for the requirements of consumers for liquor at related services for the following reasons.
54. First, the Commission rejects the general principle that merely because a business model has proved to be popular in other localities, that that justifies the grant of a new licence in this locality or any other locality. Such a contention is untenable and
- ignores the regulatory scheme and the objects of the Act; the need to consider the merits of each case; and the need to properly weigh and balance the public interest considerations in the context of each individual application.
- 55. Secondly, no evidence was presented that persons visiting the shopping centre might find it more convenient to purchase packaged liquor from the applicant's proposed store and no evidence was submitted that persons travelling along the main arterial road would find it more convenient or have any requirement to use the proposed liquor store. For example, in LC13/2011 in which Woolworths Ltd sought the grant of a liquor store licence at the Warnbro Fair Shopping Complex, it commissioned a market survey in which 409 customers at the Shopping Complex were interviewed. This evidence was given considerable weight by the Commission to demonstrate that persons attending the Shopping Complex had a requirement for one-stop shopping and ultimately that application was approved.
56. Thirdly, the only other evidence of consumer demand was evidence from the Wine Club and some letters of support lodged with the local government authority. Whilst the Wine Club and the letters of support may be evidence of consumer demand as contemplated in object 5(1)(c) it is necessary for the Commission to consider what weight should be attributed to this evidence. The requirement for liquor and related services by the Wine Club members is quite unique and does not reflect or represent the broader requirements of the general community. Similarly, letters of support submitted to the local government authority were quite general in nature, although it is noted that one or two persons did refer to the convenience of using the shopping centre and the proposed liquor store. The Commission finds that the limited nature of this evidence significantly diminishes the weight that should be accorded to it.
Grounds of appeal
12 The appellant's grounds of appeal were amended by consent on 22 February 2012 and, as amended, and relied upon are:
1. The Liquor Commission of Western Australia (the Commission) erred in law by misconstruing the meaning of 'the public interest' in s 32(2) of the Liquor Control Act 1988 (the Act) as not encompassing, when it does encompass, a public interest in:
(a) catering for the requirement of consumers for liquor and related services with regard to the proper development of the liquor industry; and
- (b) facilitating the use and development of licensed facilities so as to reflect the diversity of the requirements of consumers in Western Australia.
- 2. The Commission erred in law by misconstruing the meaning of 'the public interest' in s 38(2) of the Act by wrongly holding, by reference to extrinsic evidence, that the public interest includes an interest in avoiding the proliferation of liquor outlets, when the Act itself manifests no such intention.
3. The Commission erred in law by misconstruing ss 16(1)(b), 16(7)(b), 31(1), 32(2) and 38(2) of the Act as:
(a) not requiring, when those provisions do require, the Commission to determine an application on its merits and otherwise according to law by first making findings of fact, faithfully according to the evidence adduced before the Commission, and then applying the public interest criterion by reference to those findings;
(b) not empowering, when those provisions do empower, the Commission to find facts by inference, including by reliance upon matters which are within the knowledge and experience of the Commission as a specialist tribunal; and
(c) not requiring, when those provisions do require, the Commission, in determining an application on its merits and otherwise according to law, to make findings of fact which were the only conclusions reasonably open on the evidence that was adduced before the Commission and which it could not fail to make other than by acting irrationally and capriciously and thereby beyond the scope of the powers conferred by those provisions.
4. The Commission erred in law in failing to make, and should have made, in accordance with its duties and powers and the limits of its powers as set out in ground 3, findings of fact to the effect set out in the schedule [following these grounds of appeal].
5. The Commission erred in law by failing to take into account, and should have taken into account, relevant considerations, being the facts which should have been found as set out under ground 4.
6. The Commission erred in law by failing to find, and should have found, in accordance with its duties and powers and the limits of its power as set out in ground 3, that there were consumer requirements for one-stop shopping and a product range and services of the kind proposed to be provided by the proposed liquor store, in that -
- (a) the site of the proposed liquor store was next to a substantial suburban shopping centre which comprised of Coles supermarket and 23 retail shops/financial institutions and which attracted approximately 1.7 m people per annum;
(b) it is a notorious established fact, within the knowledge and experience of the Commission as a specialist tribunal, that shopping centres of this kind reflect consumer requirements for one-stop shopping, including for liquor and related services;
(c) the success of the Dan Murphy's business model in other suburban localities demonstrated the existence of such a requirements; and
(d) such finding was compelled by the facts which should have been found as set out under ground 4.
- 7. The Commission erred in law in failing to consider, and should have considered, in accordance with the proper construction and application of the Act as set out in the grounds above, whether the proposed liquor store, by providing the range of products and services and that were proposed and which were not otherwise provided in the relevant locality, would:
(a) contribute to the proper development of the liquor industry; and
(b) facilitate the use and development of licensed premises in a manner which reflected the diversity and the requirements of the consumers in the State.
8. The Commission erred in law in failing to consider and should have considered, on the proper construction and application of the Act as set out in the grounds above, whether it was in the public interest that the application be granted.
Schedule of findings under ground 4 [these are the findings which the appellant submits the Commission should have made for the reasons set out in that ground]
1. The Melville Plaza shopping centre is the commercial hub of the Melville locality, providing retail shopping facilities which comprise a Coles Supermarket as the anchor tenant and 23 retail shops/financial institutions.
2. The shopping centre attracts approximately 1.7 million people per annum.
(Page 12)
- 3. Almost 26,000 people live in the locality of the shopping centre and that population consists predominantly of Australian-born, relatively mature adults with higher than average income and higher than average spending patterns.
4. The area of the shopping centre and the subject premises has the status of a 'District Centre' under the hierarchy of commercial centres established by Planning Policy Statement number 4.2 of the Western Australian Planning Commission and is designated as District centre under the City of Melville Town Planning Scheme (No 5) Map.
5. As a District Centre under Planning Policy Statement, the shopping centre is expected to meet the weekly shopping needs of suburban communities on a one-stop shopping basis.
6. The shopping centre does not contain a packaged liquor outlet.
7. The proposed liquor store would be located in an existing stand alone vacant building on the western side of the shopping centre and, following refurbishment, would provide approximately 1,843 m2 of floor space.
8. There is easy and convenient access to the carpark of the proposed store from Canning Highway and 504 car bays could be available, many of which are adjacent to and 'at the door' of the proposed store.
9. The carpark has a gentle gradient readily accessible by pedestrians and convenient to those pushing a trolley (in contrast to the 1st Choice Liquor Store site which has a steep gradient and is split level).
10. Evening peak traffic flows are heaviest in an easterly direction along Canning Highway making the northern alignment of the proposed store the most favourable location for a packaged liquor outlet.
11. The proposed liquor store would be operated as a Dan Murphy's store, providing a matrix of services featuring:
(a) large, stylish facilities specifically designed and configured to provide a pleasant and unique shopping experience with state of the art retailing facilities;
(b) the best range of liquor (over 4,000 product lines) including local, Australian and international products and old, rare and premium wines, providing a much larger range than any other store in the locality with products not available elsewhere;
- (c) the best possible prices;
(d) a dedicated fine wine area;
(e) knowledgeable well-trained staff;
(f) a commitment to providing the best range of premium wines of any Australian retailer;
(g) superior and unique customer service facilities such as twice weekly wine tastings, special events, gift cards, event planner services, a fine wine manager, a fine wine guide, a Cellar Release Programme and trolleys for customers;
(h) a capacity to display a wide range of products providing shelf space and exposure to many small producers.
- 12. This liquor store brand is a reputable and established one which operates successfully in other parts of Australia, operates successfully in the Perth metropolitan area and has a record of responsible liquor service and well-trained staff.
13. There is no existing packaged liquor outlet south of the Perth central business district, let alone in the locality, that provides a combination of products and customer services similar to those that the proposed premises would provide.
14. While there are 9 commercial liquor outlets in the locality, all except the First Choice liquor store are small to medium sized convenience stores, generally carrying between 700 - 1,200 product lines, with poor representation of international wines, fine wines and premium wines.
15. The First Choice liquor store is a larger store with less convenient accessibility and a product range of approximately 2,000 - 2,500 lines and is principally a liquor barn attached to a hotel which sells mostly mainline products at competitive prices and while providing a selection of international wines, fine wines and premium wines compared to other existing packaged liquor outlets, only offers a much smaller range of these wines than the proposed Dan Murphy's liquor store would provide.
16. The applicant would implement and rigorously enforce at the premises comprehensive management and supervision practices and policies designed to minimise and manage the risk of alcohol-related harm to the local community.
17. The success of the Dan Murphy's business model in other localities, including suburban localities, demonstrates customer requirements for the range of products and services which the business provides.
(Page 14)
- 18. The proposed liquor store would provide a modern retail outlet in contrast with existing outdated retail outlets in the Bicton locality.
Recurring issues arising from grounds of appeal
13 In their written submissions and in more detail in the course of oral submissions, counsel for the appellant set out to explain a framework underlying the amended grounds of appeal and the manner upon which they were relied. In the written submissions counsel for the appellant explained that grounds 1, 2 and 3 allege misconstruction of various provisions of the Liquor Control Act which relate to the criteria, in this case a particular criterion, which govern the determination of an application for a liquor store licence and the manner in which such a determination is made. They also explained that grounds 4 and 6 allege errors of law by the Commission in failing both to find primary facts and to reach conclusions which were the only rational conclusions open applying the Act, as properly construed, to the evidence received and that these alleged errors resulted from the misconstruction of various provisions of the Act asserted in grounds 1 to 3. Counsel then submitted that grounds 5, 7 and 8 allege a failure to take account of relevant considerations which were required to be taken into account relying on the principle that it is an error of law to disregard considerations which a statute requires to be taken into account because, so it was submitted, this would involve both a misconstruction of the Act and a failure to consider the correct question: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40;(1986) 162 CLR 24, 39; Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422, 445 - 446 and R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, 329.
14 In the course of oral submissions counsel for the appellant referred to four groups of appeal grounds contending that the first of these involved instances where the Commission had misconstrued the reference to 'the public interest' in s 38(2), bearing in mind that that reference should be read with the objects of the Act specified in s 5(1) and s 5(2). This first group was said to comprise grounds 1 and 2 of the amended grounds of appeal. The second group contended for by counsel for the appellant deals with alleged misconstruction of various provisions of the Act governing the correct approach to decision making or, as counsel put it, the exercise of the power to hear and determine the application. These were said to be errors in compliance with s 16 and s 33 of the Act in the main but with some other incidental provisions as well. This group comprised ground 3 of the amended grounds of appeal.
(Page 15)
15 The third of these four groups, as developed by counsel, asserted that the Commission had failed to make findings of fact 'which were compelled by the evidence'. This included grounds 4 and 6 of the amended grounds.
16 The fourth group comprised grounds 5, 7 and 8 which, so counsel contended, involved instances where, because of the first two categories of error, it was submitted that the Commission had failed to consider the real questions upon which the exercise of its discretionary power had turned and, as a consequence, had failed to consider relevant considerations or to address the correct question upon which its determination depended.
17 In making these submissions counsel for the appellant stressed that an error of law, equally as vitiating as a patent error showing that an irrelevant or wrong consideration had been addressed by a decision maker, was a latent error of law where it became apparent that a relevant consideration or objective had not been addressed. As counsel's submissions later developed, this proposition encompassed a further contention that where there was material evidence bearing upon an issue or consideration which was relevant to the determination of the decision maker, and the decision maker had failed to address or consider that evidence and had made a decision without regard to it, that amounted to an error of law involving a failure to consider relevant evidence. A greater analysis of this submission and its implications will be necessary and is conducted later in these reasons.
18 It will, of course, be necessary to examine the particular grounds of appeal and submissions made in support or refutation of them later. However, to identify the structure of the appellant's submissions at this point it is enough to say that, with some necessary qualifications and exceptions, the appellant seeks to submit that the Commission largely failed to make any specific findings of primary fact, and hence did not engage in the process of considering what inferences material to the issues for decision could or should have been drawn from those findings of fact, so that when it concluded, as it did at [58], that the appellant had failed to satisfy the licensing authority that the grant of the application would be in the public interest, that decision was unacceptable because it had not been reached by a process of primary fact finding, or an examination of what inferences were supported by the primary facts, to allow any proper conclusion in that regard to be reached.
(Page 16)
19 According to the appellant, the process followed by the Commission amounted to the statement of a conclusion without identifying the building blocks which the appellant relied upon to lead to a contrary conclusion or the support (by way of inference) by which those building blocks pointed, inexorably so the appellant would contend, towards a different conclusion. Hence it was submitted that the method followed by the Commission could be characterised as failing to carry out its process of examination, determination and decision in a rational or probative way, thereby rendering the process contrary to law. Also, so it was submitted, this was a process which involved asking or considering the wrong question because of its alleged neglect of evidence which would admit of only one answer if the relevant question had been posed.
20 All these contentions will be examined later. Before attempting such scrutiny, however, it is necessary to refer to the nature of the contest as it was presented to the Commission and to the roles of the parties or interveners in order to see whether or not, and if so to what extent, the facts said to be material by the appellant were in contest and, therefore, whether or not in reality it could be said that they were ignored by the Commission or that the Commission erred in law by failing to make material findings of fact.
21 In the first place it is important to note that the respondent, the Director, although intervening and appearing by counsel before the Commission, and again appearing by counsel on this hearing, never at any stage opposed the grant of the licence being sought. Rather, the Director took the position that in view of the importance of the application and its potential significance in the local area, it was desirable for the decision on the application to be made by the Commission itself and for the Commission's attention to be directed to factors pertinent to a due consideration of the application. This posture was reiterated by counsel for the respondent on this appeal, who again stated that the respondent did not object to the grant of the licence but had intervened in order to raise questions for the consideration of the Commission as to whether the grant of the application was in the public interest, particularly in the context of whether the application catered for the requirements of consumers for liquor when regard is given to the proper development of that industry. Counsel for the respondent stressed that even on this appeal, although a respondent, her client did not appear to oppose the grant of the application but rather to make legal submissions in the absence of any other party or any contradictor.
(Page 17)
22 Secondly, it is important to note that the various objections to the application by the individual objectors who had originally lodged objections were struck out, including objections on health grounds. As previously noted, the Commission found specifically [59] that it was satisfied that the grant of the application would not negatively impact on the local community. Its decision, rather, was based on the conclusion that the Commission had not been satisfied that the grant of the application would be in the public interest.
23 Having regard to the manner in which the proceedings were conducted and to the absence of controversy over the basic facts and features of the proposed liquor store, its dimensions, range of stock, supervision and management experience, there were really no primary facts in controversy. As will be seen, I consider that on a proper reading of the reasons for decision of the Commission it should be concluded that all these primary facts had, indeed, been accepted by the Commission. Rather, as will be seen, the underlying question in this appeal appears to be whether or not they were given due regard.
24 Immediately upon identifying that question another significant potential issue appears, namely whether or not a failure to pay due regard to certain facts involves any error of law as opposed to an error of fact. That question can be posed in different forms, as indeed it was by counsel in the course of argument, those different forms being whether or not the failure to pay any or due regard to such facts amounts to a jurisdictional error or, alternatively, whether such an alleged failure to pay any or due regard to such facts could establish a case of unreasonableness of a kind recognised in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and so constitute an error of law.
25 The difficulty with an analysis of the issues from the point of view of so-called 'Wednesbury unreasonableness' is that unless the basic principles and limits of that doctrine are kept constantly in mind, that test could easily lead to a court having 'trespassed into the forbidden field of review on the merits' - Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 391 (Mason CJ). The proper limits of this principle have been subjected to close examination by Gleeson CJ and McHugh J in Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [3] - [44] and by Gummow J [124] - [127] and by later authority. It is not possible, at this stage, further to evaluate these submissions until the grounds of appeal are examined in their particular setting. This initial recognition of the issue is intended to do no more than to attune the mind and one's attention to the principles underlying the
(Page 18)
- submissions by which the appellant challenges the decision of the Commission.
Relevant principles
26 At this point it is convenient to identify the many points of agreement between the appellant and the respondent upon the principles to be applied for the determination of this appeal and to the role of the Commission in considering the application which was before it.
27 The objects of the Liquor Control Act1988 are declared in s 5(1) and s 5(2) and are divided into primary and secondary objects. The primary objects largely reflect the long title to the Act itself. The section specifies:
5. Objects of Act
(1) The primary objects of this Act are -
(a) to regulate the sale, supply and consumption of liquor; and
(b) to minimise harm or ill-health caused to people, or any group of people, due to the use of liquor; and
(c) to cater for the requirements of consumers for liquor and related services, with regard to the proper development of the liquor industry, the tourism industry and other hospitality industries in the State.
(2) In carrying out its functions under this Act, the licensing authority shall have regard to the primary objects of this Act and also to the following secondary objects -
(a) to facilitate the use and development of licensed facilities, including their use and development for the performance of live original music, reflecting the diversity of the requirements of consumers in the State; and
[(b), (c) deleted]
(d) to provide adequate controls over, and over the persons directly or indirectly involved in, the sale, disposal and consumption of liquor; and
(e) to provide a flexible system, with as little formality or technicality as may be practicable, for the administration of this Act.
(3) If, in carrying out any of its functions under this Act, the licensing authority considers that there is any inconsistency between the primary objects referred to in subsection (1) and the secondary
- objects referred to in subsection (2), the primary objects take precedence.
28 In proceedings under the Act the licensing authority is required to act without undue formality, may obtain information as to any question that arises for decision in such manner as it thinks fit and make its determination on the balance of probabilities (s 16(1)). The Evidence Act 1906 does not apply to the proceedings of the licensing authority, which is not bound by the rules of evidence and which is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 16(7)). I examined similar provisions recently in S v State Administrative Tribunal of WA [No 2] [2012] WASC 306 and reviewed the principal authorities there at [94] - [97]. Nevertheless, it is appropriate again to notice the observations of Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177, 189 and the position described by French CJ in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 [15] - [17] where the learned Chief Justice was speaking of analogous provisions in the Consumer Trader Tenancy Act 2001 (NSW) in the following terms:
[15] The Tribunal may, subject to the CCTA Act, determine its own procedure. It is not bound by the rules of evidence and may inquire into, and inform itself on, any matter in such manner as it thinks fit, subject to the rules of procedural fairness. That freedom is enjoyed by many administrative tribunals. The term 'rules of evidence' does not lay out with precision its metes and bounds. Nor does it exclude the discretionary application of such rules. But the authority of the tribunal to 'inform itself on any matter in such manner as it thinks fit'indicates that it is able to act upon information whether or not it is embodied in evidence which would be admissible in a court of law.
[16]There are qualifications upon the tribunal's procedural freedom. One, which is explicit, is the requirement to observe procedural fairness. The tribunal's modus operandi must also serve its function, which, in this case, was to hear and determine a building claim. That function implies a rational process of decision-making according to law. A decision based on no information at all, or based on findings of fact which are not open on information before the tribunal, is not compatible with a rational process.
[17]The exercise of the Tribunal's freedom from the rules of evidence should be subject to the cautionary observation of Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, 256 that those rules 'represent the attempt made, through many generations, to evolve a method of inquiry best
- calculated to prevent error and elicit truth'. It is a method not to be set aside in favour of methods of inquiry which necessarily advantage one party and disadvantage another. On the other hand, that caution is not a mandate for allowing the rules of evidence, excluded by statute, to 'creep back through a domestic procedural rule'. (footnotes omitted)
29 There is a suggestion by the appellant in the present case that the licensing authority did not accord procedural fairness to the parties before it. This amounts to a contention that the Commission ignored relevant evidence and disposed of the application without dealing with the real substance of the appellant's case. The submission was that despite its relative freedom from procedural constraints, the licensing authority was still bound to adopt a rational process of decision making and that it was bound to examine the evidence in order to make findings and/or draw inferences which, in a rational manner, should have been drawn from the materials before it and which were pointed towards a different ultimate decision. The initial point of that submission can be accepted but it is another matter altogether to determine that there was a failure by the licensing authority to adopt that procedure and that its process of reasoning towards its conclusion was otherwise than rational or based upon the material before it. Submissions to that effect will be examined more closely later.
Absolute discretion
30 When deciding an application the licensing authority has an absolute discretion to grant or refuse the application on any ground, or for any reason, that the licensing authority considers in the public interest (s 33(1)). An application may be refused even if the applicant meets all the requirements of the Act or it may be granted even if a valid ground of objection is made out but is required to be dealt with on its merits after such enquiries that the licensing authority thinks fit (s 33(1) and (2)). In relation to any application for the grant of a liquor store licence, or other form of licence, an applicant must satisfy the licensing authority that granting the application is in the public interest (s 38(2)). Furthermore, it is provided that with respect to an application for a liquor store licence and other forms of licence that:
38(4) Without limiting subsection (2), the matters the licensing authority may have regard to in determining whether granting an application is in the public interest include -
(a) the harm or ill-health that might be caused to people, or any group of people, due to the use of liquor; and
- (b) the impact on the amenity of the locality in which the licensed premises, or proposed licensed premises are, or are to be, situated; and
(c) whether offence, annoyance, disturbance or inconvenience might be caused to people who reside or work in the vicinity of the licensed premises or proposed licensed premises; and
(d) any other prescribed matter.
31 Notwithstanding the breadth of s 33(1) the appellant submits that this does not mean that the discretion is either arbitrary or unconfined or may be exercised other than according to law: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492, 502. It has, of course, been said that no statutory discretion is ever absolute because it must take its purpose, scope and criteria from the express or implied terms of the statute by which it is conferred. Accordingly, this submission should be accepted: FAI Insurance Ltd v Winneke[1982] HCA 26; (1982) 151 CLR 342, 368; R v Anderson; Ex parte Ipec-Air Pty Ltd (189); and Sharp v Wakefield [1891] AC 173, 179.
32 The 'absolute discretion' to grant or refuse an application of any ground or for any reason that the Commission considers in the public interest, s 33(1), is an example of a very full and ample discretion which is only confined by the scope and purpose of the Act which in turn is to be determined by the express objects of the Act and the legislation read as a whole: Hermal Pty Ltd v Director of Liquor Licensing [2001] WASCA 356 [6] - [7] (Wallwork J) and Palace Securities v Liquor Licensing (1992) 7 WAR 241, 249 - 250 (Malcolm CJ) and 263 (Wallwork J). Section 5(2) in requiring the licensing authority to have regard to the primary and secondary objects of the Act, which have already been mentioned, obliges the licensing authority to pay regard to those objects on any application but does not otherwise confine the scope or meaning of the public interest or make those objects the exclusive considerations nor the sole determinants of the public interest: Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511, [52] - [55]; O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 and Jericho Nominees Pty Ltd v Dileum Pty Ltd (1992) 6 WAR 380, 400.
33 Counsel for the appellant submitted that the mandatory terms of s 5(2) are in contrast with the permissive terms of s 38(4) and that the latter identify additional aspects of the relevant public interest which the
(Page 22)
- licensing authority 'may have regard to'. However, I do not accept that either s 5(2) or s 38(4) provides any exclusive determination of what are the only factors to be considered in the public interest. Indeed, s 34(4) itself specifies that the four named categories of matters which might be considered in determining whether to grant an application in the public interest are not limitations on the concept of public interest itself. The reference to the absolute authority to grant or refuse an application on any ground or for any reason considered to be in the public interest (s 33(1)) reveals that both s 5 and s 38 of the Act are relevant when the licensing authority makes any such decision: Palace Securities v Liquor Licensing (250).
34 None of this was really in issue either on the appeal or before the Commission but the appellant did advance a derivative submission that the licensing authority is not empowered to determine the scope of the public interest for itself as if s 5 did not exist. That submission too should be accepted but I have already concluded that there is nothing in the determination by the Commission to suggest or imply that the dismissal of the appellant's application was in any way inconsistent with the objects of the Act as specified in s 5 or that they are the sole or exclusive determinants of the public interest. Accordingly, the point raised by the appellant can be accepted but it does not demonstrate any error by the Commission in this case. In making its decision the Commission repeatedly referred to whether the application, if granted, would 'cater for the requirements of consumers and consequently promote one of the primary objects of the Act' (see [52] - [57]) and in doing so it must be taken to have been referring to s 5(1)(c) of the Act. It expressly referred to what was the 'proper development of the liquor industry' at [39] - [40] and [48] - [52].
35 The use of such a wide expression as 'in the public interest' is generally taken to confer a discretionary value judgment to be made by reference to undefined factual matters whose relevance and materiality are variable but identifiable from the subject matter and the scope and purpose of the particular statutory enactment, and which may vary according to the circumstances of a particular case: O'Sullivan v Farrer (216 - 217); Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [31], [69]. Such a broad criterion for the exercise of the determination of the licensing authority will often require the balancing of competing interests and involve questions of fact and degree: Executive Director of Health v Lily Creek International Pty Ltd [2000] WASCA 258; (2000) 22 WAR 510 [19], [22]. In McKinnon v Secretary, Department of Treasury (2005) 220 ALR 587 Tamberlin J observed at [9] and [11] that the
(Page 23)
- expression 'the public interest' involved attention being given to the conclusion or determination in any particular case which best serves the advancement of the interests or welfare of the public, society or the nation and that its content will depend on each particular set of circumstances.
36 In exercising this broad discretion in conformity with the objects of the Act and in the public interest it will be a matter for the licensing authority itself to decide what weight should be given to competing interests and other relevant considerations: Hermal Pty Ltd v Director of Liquor Licensing [2001] WASCA 356 [37] (Templeman J).
37 In exercising its discretion and in acting in the public interest the licensing authority is required to take balanced approach to the granting of new applications and should not approach or conduct the determination on the basis of any legal or factual presumption in favour of the grant of a licence or any view that the commercial interests of an applicant are necessarily coincident with the public interest although, in the case of a successful application, it may turn out that they are or that there is a significant degree of coincidence between them. This follows from the obligation under s 38(2) of the applicant to satisfy the licensing authority that the grant of the application is in the public interest and so imposes a burden of persuasion to that extent which will need to be satisfied by evidence adduced in any particular case.
38 In its grounds of appeal and in its oral submissions the appellant has contended that the Commission had wrongly adopted a narrower meaning of 'the public interest' when making its ultimate determination because of the absence of any reference to or any account being given to 'the proper development of the liquor industry' as referred to in s 38(2). I am, however, unable to accept that submission. There is nothing in the reasons for decision of the Commission nor in its decision itself to suggest or imply that some truncated notion of 'the public interest' because of neglect or diminished recognition of the notion of 'the proper development of the liquor industry' was adopted or applied. The establishment of a liquor store licence for the particular outlet proposed by the applicant in this location would, it may be assumed without deciding, amount to a development of the liquor industry in the locality certainly in size, magnitude and scale of operation and, perhaps, even modernity and amenity. However, none of that means that this amounts to proper development or that development of that nature accompanied by identifiable attractions is in the public interest is the sole or conclusive factor which, of itself, would lead to the application being granted. I see no reason to conclude that the Commission failed to recognise these
(Page 24)
- features of the appellant's application or regarded them as irrelevant. They were clearly recognised but in the balancing process undertaken by the Commission they were not regarded, either alone or in connection with other aspects of the application such as the experience and management ability of the appellant, as sufficient to establish a case that the application should be granted in the public interest.
39 Further submissions were made on behalf of the appellant that the Commission's consideration of the evidence of public requirements was too narrow by failing to recognise the existence and breadth of the proper liquor industry development aspect of the public interest and also because there was no consideration given to the extent of the public requirements relevant to that topic as they emerged directly and inferentially from the evidence that was adduced. However, again I cannot accept that submission. Consistently with the objects of the Act and its purposes to be taken from the legislation as a whole, the licensing authority is constituted the arbiter of the public interest in this domain. Inevitably, because of the breadth of its discretionary considerations, already described, there are likely to be differences, even broad differences, of view about whether or not a particular application is within the public interest or even whether it is consistent with the proper development of the liquor industry. Those are determinations which are entrusted to the Commission which is especially appointed, selected and empowered to make them. Unless an error of law is demonstrated in the process of reasoning, or in the approach taken to the performance of the task which leads to the decision, there is no scope for such an interference by this Court on an appeal such as this. The fact that some other person, body or group of persons may take a different view about the relevant 'public interest' or the consistency of the decision with regard to the proper development of the liquor industry, or even the diversity requirements of consumers in the State does not establish any such error of law. Such a decision has been entrusted by Parliament to a specialist body whose decisions will often need to be made when there are significant factors to be considered for or against a particular application or as to where the public interest lies in the particular case. Just because what may appear to some as a strong case for the grant of a licence turns out to fail does not mean that there has been any error by the Commission. Further, it must be said, that even if that were suggested, that would only be an error of fact which would not lead to intervention by this Court.
40 A further ground of appeal and submission by the appellant (ground 2) was that the Commission erred in law by adopting an approach which suggested that in determining the public interest regard could be
(Page 25)
- had to a view that proliferation of liquor outlets is not an outcome that would be supported by the public interest test - an observation taken from the Minister's Second Reading speech in Parliament in the course of the introduction of the Liquor and Gaming Legislation Amendment Act 2006 (see reasons at [37]). The first point to be made about the submission is that the Commission itself expressed its satisfaction that a grant of this particular application would not negatively impact on the local community [59] and, therefore, it should be concluded that any notion of expansion of liquor outlets in this particular locality which might result from the grant of this application was not treated in any negative way by the Commission. Nevertheless, the appellant maintained the submission contending that on a proper construction of the Act the public interest does not encompass any aspect of government policy, as it was submitted was the characterisation which should be attributed to the Minister's remark in the Second Reading speech quoted, and that proliferation is not mentioned among the objects referred to in s 5 or in relation to specific potential aspects of the public interest referred to in s 38(2) so that, accordingly, the reference to the Minister's speech to Parliament was irrelevant and inadmissible as to the construction of the Act whether under s 19 of the Interpretation Act 1984 or otherwise. This led in turn to a submission that an impermissible and irrelevant concept had been wrongly introduced by the Commission into the notion of the public interest and had, by implication, been imported into the conclusion to refuse the application.
41 I have already mentioned that the Commission itself clearly observed that no aspect negative to the local community was involved in this particular application. Nor do I consider that there is any basis upon which it can be concluded that the Commission has implicitly introduced into the concept of public interest some impermissible criterion such as a disinclination towards proliferation of liquor outlets when making its determination. First of all, there is no such reference to be found anywhere in the reasons of the Commission. Secondly, the submission is itself ungainly. It is capable of suggesting that any disinclination to grant a new licence, which would result in an increase in licences in the locality, would be inimical to the proper construction of the Act so that any reference to any such consideration would result in a decision being made in error of law because of reference to an irrelevant consideration. This entirely overlooks that the Act as a whole establishes a regime for the control and regulation of liquor outlets and a restriction of them to those applicants and places which can meet the criteria of the Act. The Act does not proceed on the basis that there is a presumption in favour of a
(Page 26)
- grant of a licence, rather the reverse, that an applicant must demonstrate that it is in the public interest that an application should succeed. Just because an application may be for a bigger, more efficient or more popular liquor outlet and that such an outlet may involve the development of the liquor industry does not entitle such an application to proceed. Wider considerations involving the public interest must also be assessed and determined. Observations in the reasons of the Commission suggesting that a liquor outlet of this particular style and size should not be granted do not reveal a policy opposed to new licences or liquor outlets of a particular kind but in this case, when read in context, should be treated as reflecting the Commission's conclusion that this particular application had not demonstrated that the grant of the application was in the public interest.
Primary facts and inferences
42 The submissions for the appellant went as far as contending that the Commission had reached its conclusion on whether the public interest criterion was satisfied without making any primary findings of fact at all. It was further submitted that the decision also included a failure to make findings by drawing inferences from facts which were established by the evidence or not contested. This was directed towards [6] - [17] of the Commission's reasons which the appellant characterised as a narrative only of the appellant's submissions without progressing towards the making of any findings of facts whether any or all of those submissions [of fact] were accepted. Similar submissions were advanced in relation to other aspects of the material put before the Commission by the Director of Liquor Licensing, by the Executive Director of Public Health, by the objectors and by the City of Melville as referred to in [18] - [32] of the Commission's reasons. In relation to those latter recitations of submissions from interveners or third parties including objectors, the contention advanced by the appellant simply cannot be accepted because of the express manner in which the Commission dealt with the submissions from the objectors and interveners because, as already remarked, in [60] the objections of the various objectors were all struck out and the submissions of the interveners led the Commission to conclude that the grant of the application would not negatively impact on the local community [59].
43 The question remains, however, whether or not there was a failure by the Commission to make any findings of primary fact in relation to the basic details, characteristics and asserted advantages relied on by the appellant to support its application. The appellant submits that, on the
(Page 27)
- evidence before the Commission and having regard to the way the hearing was conducted without challenge to the basic elements of the application, the Commission was bound to find, and erred in failing to find, specific facts as enumerated in pars 1 to 18 of the schedule of findings referred to in ground 4 of the amended grounds of appeal (set out fully earlier in these reasons).
44 The case for the appellant is that the Commission should have, but did not, examine the evidence before it with a view to making that series of findings of primary fact and then to consider those facts and the evidence generally with a view to considering further what inferences or secondary findings of fact should be drawn from those findings. It submits that a failure to draw an inevitable inference or the only inference which could reasonably be drawn from the facts found or undisputed would constitute an irrational and invalid omission which would reveal that the decision making process had not been conducted in accordance with law. It is therefore necessary to turn to the findings of the Commission and examine these submissions in closer detail.
45 The manner by which the reasons for decision of the Commission were set out by summarising the submissions of the parties, particularly the appellant, does not mean that the Commission failed to make any findings of primary fact (or secondary fact by inference) as contended. The reasons need to be read in context and against the background, earlier described, that there was no substantial contest before the Commission about any of the background facts or matters. Furthermore, it is not necessary for the Commission to mention every finding of fact in the course of its reasoning: Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126, 127. It will be sufficient if it is apparent from the decision maker's reasons that submissions of substance and material facts have been considered - Minister for Immigration and Citizenship v Shea [2011] FCA 37 [32] - [36]. The reasons must be examined having regard to the contest between the parties and the controversies, if any, joined in the course of the hearing. An inference that the Commission has failed to consider an issue or evidence can, of course, be drawn if that issue or evidence is ignored by the Commission in its reasons but there should be no ready inclination to draw such an inference of neglect or oversight if the reasons themselves are comprehensive and the issue has been identified by the decision maker - Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 [47].
(Page 28)
46 Having examined the reasons for decision and giving direct attention to the alleged failure of the Commission to make findings of fact as set out in the schedule to ground 4, I can only say that on any fair reading of the reasons for decision in context one should conclude that all the specific findings of fact contained in the schedule under ground 4 were actually assumed or accepted by the Commission with the exception of numbers 17 and 18, namely:
17. The success of the Dan Murphy's business model in other localities, including suburban localities, demonstrates customer requirements for the range of products and services which the business provides.
18. The proposed liquor store would provide a modern retail outlet in contrast with the existing outdated retail outlets in the Bicton locality.
47 That facts and circumstances listed in items 1 to 16 of the schedule under ground 4 of the amended grounds of appeal were accepted or assumed by the Commission is apparent from the Commission's reasons at [6], [9], [10], [11], [14] and from the Commission's acceptance of the MGA Report at [14].
48 The Commission did not make any express finding in relation to par 18 of the schedule of facts referred to under the fourth ground of appeal but it is clear without doubt that it realised that the development proposed by the appellant would provide a large scale modern retail outlet and on a scale significantly larger than existing outlets. That was never contested and the acceptance of that characterisation is furthermore manifestly implicit in the ultimate reason for decision that the public interest in that locality had not been shown to require an outlet of that dimension. The finding of fact which the appellant contends should have been made under par 17 of the schedule, namely that the success of the Dan Murphy's business model in other localities demonstrates customer requirements for similar services in this locality, was expressly rejected by the Commission [54]. It cannot, therefore, be said that the Commission did not attend to that contention nor make any finding in respect of it. The finding of the Commission rejecting that contention is challenged on other grounds which will be examined later, but this present review reveals that there is no basis for contending that the Commission failed to make any material finding on that issue. It follows that the submissions that the Commission misconstrued its role of decision making and failed to make necessary material findings of fact as asserted in grounds 1, 2, 3 and 4 of the grounds of appeal must be rejected.
(Page 29)
49 In the submissions in support of ground 4 and the contention that the Commission had failed to make findings of material facts, the appellant also submitted that where evidence is given on one side which is conclusive of a matter, which is not unreasonable or improbable and is not contradicted by other evidence, the tribunal which hears it is bound to accept it: Swinburne v David Syme & Co [1909] VLR 550, 565. Subject only to context and materiality that proposition can be accepted, at least at a general level, but the well-known principle which it reflects provides further reason to conclude that the Commission did accept the uncontested submissions and allegations of fact of the appellant rather than reject them because not only should it have done so but also because those would be the natural and obvious conclusions to draw in such circumstances. This also is sufficient to dispose of grounds 7 and 8 in the amended grounds of appeal, but they are addressed in detail later.
50 The next series of grounds of appeal (grounds 5, 7 and 8) involved contentions by the appellant that if the Liquor Commission had found the primary facts which ground 4 (schedule) asserts it should have found but failed to find, then regard should have been directed towards the objects specified in s 5 of the Act which in turn would have required consideration of whether those facts established that the proposed liquor store would provide a range of products and services that were not otherwise provided in the relevant locality and would:
(a) contribute to the proper development of the liquor industry; and
(b) facilitate the use and development of licensed premises in a manner which reflected the diversity of the requirements of consumers in this State
51 and that by failing to do this the Commission erred in law by failing to determine the application with reference to relevant considerations. I have already set out why I consider that the Commission should be taken to have found or accepted the basic facts and contentions contained in pars 1 to 16 of the schedule to ground 4 of the amended grounds of appeal, that is all the basic features of the factual background and characteristics of the liquor store proposed by the appellant in its application. That it did not accept the contentions of facts set out in pars 17 and 18 is not material to the present issue because I am satisfied that the Commission did attend to those matters but did not accept them and was not obliged to accept them - an issue which will be more fully considered again later.
(Page 30)
52 Essentially, this group of appeal grounds contends that the facts so accepted (contained in pars 1 to 16 of the schedule to ground 4) must lead inexorably to the conclusion that the proposed liquor store would contribute to the proper development of the liquor industry and that it would facilitate the use and development of licensed premises in a manner which reflected the diversity of the requirements of the consumers in this State. However, those are ultimately value judgment entrusted to the discretion of the Commission. Whether any particular licence application will or will not contribute to the proper development of the liquor industry or whether it will facilitate the use and development of premises in a manner which reflects the diversity of the requirements of consumers in this State are questions of fact, degree and value judgment. As has been said of other similar broad criteria in a quite different context, such multi-faceted judgments mean that comparisons with other cases and check lists of relevant considerations are at best of limited utility - see per Nettle JA in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; (2010) 31 VR 1 [51]. I have previously concluded that the primary objects of the Act set out in s 5(1)(c) are not the only or the exclusive objects of the Act and, except to the extent of any inconsistency, do not restrict considerations of the public interest required by s 33(1) or s 38(2).
53 Because the appellant has emphasised the potential significance of the primary objects of the Act set out in s 5(1)(c), it is necessary to observe that another primary object specified by s 5(1)(a) is to regulate the sale, supply and consumption of liquor and that this statutory policy of regulation is entirely consistent with a measured approach to what may be regarded as contributing to the proper development of the liquor industry and to the facilitation of the use and development of licensed premises to reflect the diversity of the requirements in this State. These considerations are inextricably linked with the public interest and cannot be properly addressed or applied without regard to it. That the Commission concluded that it was not persuaded in the instant case that the grant of this store licence would be in the public interest does not in the least way support, or even suggest, that the Commission has not paid due regard to the objects of the Act contained in s 5(1)(c) or, indeed, to any of the other objects of the Act contained in s 5. Consequently, grounds 5, 7 and 8 of the amended grounds of appeal must be rejected.
54 Ground 6 of the amended grounds of appeal addresses the existence of consumer requirements for one-stop shopping and a product range of services of the kind proposed to be provided by the appellant's intended liquor store. These matters were addressed by the Commission at [49] - [50] and [53] - [58]. As to its assessment of the significance of
(Page 31)
- consumer requirements and the degree to which they may be suitably satisfied by such a one-stop outlet, the Commission addressed several aspects of the evidence. In the first place, it dealt with the support of members of a local wine club who had submitted letters supporting the application, but mentioned that there had been no independent or systematic market survey of demand for such facilities as had occurred in other cases and that, in any event, a determination of such an issue is necessarily a question of fact and degree, depending on the population of the affected area and a range of other circumstances - as had been explained by Malcolm CJ in Hay Properties Pty Ltd v Roshel Pty Ltd (1998) (Unreported, WASC, Library No 9804496, 20 July 1998).
55 In addition, the Commission rejected the general principle that merely because a business model had proven to be popular in other localities that would justify the grant of a new licence in this particular locality [54]. That finding is attacked for other reasons but, staying with the present ground of appeal, the rejection of the appellant's submissions that consumer requirements in the area for one-stop shopping and a product range and services proposed as demonstrating that it was in the public interest that this licence should be granted cannot be said to contain any error of law. It is, essentially, a question of fact entrusted to the Commission for decision. It was addressed, the evidence relating to it was identified, even if not as comprehensively as the appellant now contends it should have been, and it was not accepted. It was not obligatory for the Commission to examine in detail all the evidence on this issue or to recite or to record the content of the marketing reports which had been prepared advancing the existence of such an asserted consumer demand. The Commission was aware of those matters, they had been drawn to its attention, the reports containing the detailed evidence had been identified and accepted, but none of that persuaded the Commission that the grant of the licence would be in the public interest. There is nothing to suggest that the Commission misunderstood the evidence or drew and erroneous or mistaken inference from it but, even if it had done any of those things, that would be no more than an error of fact which would not justify review on appeal by this Court.
56 This leaves for consideration one further aspect of ground 6 of the amended grounds of appeal, namely that the Commission erred in law by failing to find, and that it should have found, that there were consumer requirements for one-stop shopping and a product range and services of the kind proposed to be provided by the proposed liquor store and that the success of the Dan Murphy's business model in other suburban localities demonstrated the existence of such requirements. As the hearing of this
(Page 32)
- appeal progressed and the focus of analysis intensified, this became associated more and more with pars 17 and 18 of the schedule of facts under ground 4 of the grounds of appeal which the appellant contended should have been found by the Commission and which, if found, the appellant submitted, should have led inexorably to a grant of the licence sought. In this regard, particular challenge was made by counsel for the appellant to the observations of the Commission in [55] as follows:
Secondly, no evidence was presented that persons visiting the shopping centre might find it more convenient to purchase packaged liquor from the applicant's proposed store and no evidence was submitted that persons travelling along the main arterial road would find it more convenient or have any requirement to use the proposed liquor store.
58 The submission for the appellant is that in rejecting the relevance and application of the success of the Dan Murphy business model in other locations (reasons [54] - [55]) the Commission wrongly failed to recognise that this evidence, although undoubtedly dealing in detail with other localities, was such that it would justify an inference that a comparable favourable response to the installation of such a liquor store in the Bicton area could be expected from the local population because of the general advantages of the Dan Murphy model which had been embraced by the public elsewhere. The point was made that other business model evidence represented a body of evidence which was capable of leading to an inference favourable to the appellant and that no recognition of this was accorded by the Commission. One answer to that submission, of course, is that the conclusion drawn by the Commission was a conclusion about a matter of fact not of law and, consequently, cannot ground any successful appeal to this Court. However, the appellant takes it one step further by contending that the rejection of the evidence dealing with the success of Dan Murphy stores in other locations was such an unreasonable conclusion that it could not be supported and is
(Page 33)
- indicative of error because of lack of rational justifiable process of reasoning. It was contended to be an example of Wednesbury unreasonableness.
59 In further support of that submission counsel for the appellant referred to a passage in the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 359 where the learned Chief Justice observed:
However, in several decisions it has been suggested that findings of fact which are unreasonable or arbitrary may be reviewed under s 5(1)(e) and 2(a) and (b) [of the ADJR Act]: see Singh v Minister for Immigration and Ethnic Affairs 91987) 15 FCR 4 at 10; Independent FM Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 3 VR 458. Minister for Immigration, Local Government and Ethnic Affairs v Passhmforoosh (Unreported, Federal Court, 28 June 1989). In the last mentioned case, Davies, Burchett and Lee JJ said:
'Thus, decisions may be set aside because, being insufficiently supported by reason, they appear to be an improper exercise of the power conferred or arbitrary or because there was no evidence or other material sufficient to justify the making of the decision or the decision was so unreasonable that no reasonable person could have so exercised the power. The making of, or failure to make, a particular finding of fact in the course of the reasoning process may equally be attacked on any such ground. The taking into account of a fact found unreasonably or the failure to take into account a fact that a reasonable decision-maker would have found and taken into account provides a ground of review under ss 5(1)(e) and 5(2)(a) and (b) of the ADJR Act.' (Emphasis added)
61 Accordingly, it was contended that by putting out of consideration the evidence relating to the substantial success of the Dan Murphy liquor store business model in other locations as not being relevant or material to a consideration of the application then before it, the Commission made a decision which was so unreasonable or arbitrary as to deprive its determination of the necessary quality of rational decision making and thus render it erroneous in law. This contention raises for its evaluation important considerations of the difference between errors of fact and errors or law and of the need for courts to be especially vigilant in cases where it is suggested that one may have merged into the other.
(Page 34)
62 In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 [123] - [133] Crennan and Bell JJ described how it was acknowledged that the contemporary invocation of 'illogicality' or 'irrationality' as a basis for judicial review may well have first emerged in Australia in Applicant S20/2002[2003] HCA 30; (2003) 77 ALJR 1165 [20] and of the developments of the doctrine which have since occurred in this country. In doing so, their Honours observed at [130]:
In the context of the Tribunal's decision here, 'illogicality' or 'irrationality' sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is 'clearly unjust' or 'arbitrary' or 'capricious' or 'unreasonable' in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
63 This recent analysis seems to have flowed as a progression from the concept of Wednesbury unreasonableness in England and the ouster of the review ground of the Wednesburyunreasonableness in immigration law more recently in Australia so that illogicality or irrationality, while overlapping to some degree, has a field of operation beyond Wednesbury unreasonableness - at [129]. As Crennan and Bell JJ observed in SZMDS at [124] care must be taken to avoid attributing a meaning to 'illogical' or 'unreasonable' or 'irrational' which falls short of the challenged conclusion being untenable and instead being one to which the review tribunal itself would not be inclined to come. As their Honours said:
First, describing reasoning as 'illogical or unreasonable, or irrational' may merely be an emphatic way of expressing disagreement with it, and to describe a conclusion that a decision maker is not satisfied as 'irrational' might mean no more than that, on the material before the decision maker, a court would have reached the required state of satisfaction. (References omitted)
64 A prelude to this recent approach can be found in Minister for Immigration and Multicultural Affairs v Eshetu where it was held that the giving by an administrative tribunal of inadequate weight to certain matters and undue weight to others did not, itself, establish a case of
(Page 35)
- unreasonableness of the kind referred to as Wednesbury unreasonableness. In that case, the criticism of the decision of the Refugee Review Tribunal attempted was found to be confined to its findings upon some factual matters and its failure to make findings on others. In the circumstances of this case, this did not amount to jurisdictional error or Wednesbury unreasonableness. The caution which must be exercised by the court in cases where these doctrines are invoked is to avoid exceeding the supervisory role of the court by reviewing the challenged decision upon its merits (Eshetu [44]) - see also Gummow J at [125].
65 Hence the question of present significance is whether the rejection by the Liquor Commission of the evidence relating to the operation and success of the Dan Murphy liquor store business model in other locations or localities is untenable. Put another way, did the approach of the Commission ignore the regulatory scheme and the need to consider the merits of each case? Did the Commission omit the need properly to weigh and balance the public interest in the context of each individual application so that it can be said to be 'unreasonable' in that sense or 'illogical' or 'irrational', in the sense in which those concepts could lead to legal error as described in SZMDS? In this regard, it is important that this Court should not substitute its view of the potential relevance or significance of that evidence for the view taken by the Commission unless satisfied that the view taken by the Commission was untenable in the sense in which I have used that term as embracing Wednesbury unreasonableness, 'illogicality' or 'irrationality' in the developed senses of those terms. One also has to pay regard to the special qualifications and experience of the members of the Commission, entrusted as they are with specialist knowledge and supervision of the liquor industry.
66 There can be no quarrel with the proposition that each individual case must be considered and determined with regard to its particular facts and circumstances. Nor can there be any quarrel with a view that the success of the particular business model or operation in other localities will not be determinative of the suitability of a similar outlet in another specified locality. The question, rather, is to what extent, if any, may inferences be drawn from past success in other localities in an application propounding a similar outlet in a new particular locality. I cannot escape from the conclusion that this is a question of fact and degree and one upon which there may be extensive scope for differences of opinion whether of an absolute kind or of a more nuanced kind. One might disagree with the rejection of the experience in other areas as being relevant or material to the determination of the application which was before the Commission in
(Page 36)
- the present case, but that does not mean that this was illogical, irrational or unreasonable in the requisite sense or that it was such an egregious process of reasoning on a matter of fact as to amount to a departure from the obligation of decision making according to law. If there was an error in the present case, in this regard, and I am not satisfied that there was, I do not see how it could be more than an error of fact. This means that ground 6 of the amended grounds of appeal must also be rejected in its entirety. This also confirms the earlier rejection of grounds 7 and 8.
67 It follows that this appeal should be dismissed.
12
34
1